NAZIR AHMED RESHI Vs. ROSHAN ARA

JUDGEMENT

(1.) IMPUGNED is the order dated 19.09.2006; passed by learned Additional District Judge, Srinagar whereunder two preliminary issued have been decided. Petitioners not satisfied with the order have contended that the order impugned is not in accordance with law.

(2.) FOR appreciating the controversy in its right direction, it shall be quite advantageous to precisely notice the factual back ground of the case. Initially on 16.12.1980 suit titled Roshan Ara & ors. v. Mst. Sara Begum and others was instituted before this court to the effect that, one Mohd. Ismail Reshi deceased had left behind the property which include Prince Hotel situated at Pahalgam so plaintiffs (respondents/herein) being the legal heirs are entitled to the suit property. Subsequently, plaintiff (respondents) sought amendment, so, amended plaint came to he filed on 20.02.1981 wherein rest of the property left behind by the deceased was included in the suit as detailed in the plaint Since the plaintiff no. 1 to 3 (respondents herein) were minors, so one Advocate, R.N. Koul acted as next friend but subsequently, maternal grand father of the minors, Habibullah Gatoo was appointed as Guardian by die District Judge, Anantnag. On 19.12.1981, application seeking to sell the property of minors to the extent of their share was filed. This court vide order dated 24.12.1981 held that Habibullah Gatoo has been appointed as Guardian, therefore, Sh. R.N. Koul, Advocate, who was acting as next friend stands discharged from his duty and Habibullah Gatoo was directed to be shown as Guardian of the minors - plaintiffs. Said Habibullah entered, into compromise with defendant no. 11 and 12 on 24.12.1981 copy of which is on the file whereunder property to the extent of the share of minors has been valued at Rs. 48,000/ -. In lieu thereof, agreed to be surrendered in favour of defendant no. 11 and 12 namely; Mohd. Ramzan Reshi and Nazir Ahmed Reshi. But this compromise has not been attested by the Court. Further more, appointed guardian had shown disinclination to appear before the Court. In view of the refusal, compromise arrived at in between the parties could not be attested as is reflected in order recorded on 31.05.1985. During the proceedings, plaintiff no. 1 and 2 Shabir Ahmed and Tariq Ahmed attained the age of majority. Whether the compromise could be acted upon or not was to be considered as is referred in order dated 19.10.1985. Vide order dated 14.05.1986 two preliminary issues were framed which read as under: - "1. Whether any compromise has taken place with regard to the suit property between defendants 11 and 14 and the guardian ad -litem of plaintiff 1 to 3? If so, what is its effect on the suit? ... OPD. 2.In case issue No. (l) is proved, whether the property belonging to defendants 20 to 22 is included in the compromise and if so, what is its effect?...OPD."

(3.) THE production of evidence was in progress, thereafter, case came to be transferred to the Court of District, Judge, Srinagar then seem to have been transferred to the Court of Additional District Judge, Srinagar, for disposal under law. Finally, learned Additional District Judge, Srinagar, has decided two preliminary issues vide, impugned detailed judgment dated 19.09.2006. While deciding issue no. 1 against the defendants opined that matter has been pending for long time still has not crossed the infancy stage so has impress the parties to co -operate in disposing, of the case at the earliest. As such, matter has been posted for recording rest of the issues.